This article considers a number of cases in which the High Court has exercised its inherent jurisdiction in respect of registered titles to land, including a recent decision (in which the writer appeared as counsel for the successful applicant) to register the claimants in place of the defendant as registered proprietor on an interim basis ahead of trial.
Introduction
The Land Registration Act 2002 contains multiple provisions concerning notices and restrictions – in particular ss 32 – 47 (the Act). Applications are made to the Land Registry routinely in order to protect certain rights and interests either by way of notice or restriction. Some of these are contentious and a good many end up being resolved by the First-tier Tribunal (Property Chamber). Such matters are not uncommonly raised in High Court or County Court proceedings. As is well-known there is power to alter the register under s 65 (read with Schedule 4) and objections to applications may be made under s 73 of the Act. As is, perhaps, less well-known, a person must not apply for the entry of a notice or restriction (or object to an application) without reasonable cause: see s 77.
Despite the above, there are an increasing number of authorities which make plain that the High Court has inherent jurisdiction to alter the register on an interim basis albeit such cases are not as well-known as they might be. The purpose of this article is to shed some light on the circumstances in which the High Court’s jurisdiction is being invoked in this context.
The Case Law
Nugent v Nugent [2013] EWHC 4095 (Ch) was a case in which the claimant had entered a unilateral notice pending determination of a proprietary estoppel claim, which the defendant asked the High Court to vacate so that she could sell/charge the property to raise money to defend the claim.
Morgan J accepted that, in principle, a person could be restrained by interim injunction from making an application to the Land Registry without reasonable cause (para 23) and that (on a summary judgment application) an order could be made altering the register under Schedule 4 of the Act, but, on the facts, such routes were not available in this case. Rather, the Judge concluded that, just as the Court had an inherent jurisdiction to vacate cautions registered under the Land Registration Act 1925, it retained a jurisdiction in relation to unilateral notices. Applying, by analogy, principles developed in proprietary freezing injunction cases, Morgan J held that it would be unjust not to permit the defendant to sell/charge the land to raise funds and so an order was made vacating the unilateral notice.
Law v Haider [2017] UKUT 212 (TCC) was another decision of Morgan J which concerned the cancellation of a restriction (by the FTT), which was overturned on appeal. The restriction itself had been sought to protect rights under a Tomlin Order. A concern was raised as to whether the restriction might be used in the future for an ulterior purpose to place one side at a disadvantage from which the other side could benefit. At para 76, the Judge said:
“Another possibility would be for the Haiders to apply in the Chancery Division for an order vacating the restriction under the jurisdiction recognised in Nugent v Nugent…That jurisdiction can be exercised on an interim application to the court and the established practice is to adopt a robust approach to the determination of any issues between the parties. Further, if the Laws showed that they had an arguable case to maintain the restriction, the court would have power to permit the restriction to remain but only if the Laws gave an undertaking in damages.”
Subhani v Sultan [2017] EWHC 1686 (Ch) was yet another decision of Morgan J in which a unilateral notice was vacated which had been entered by the defendant in support of his position that he was the beneficial owner of a family property. At para 44 it was explained that i) if the claim lacks substance, the Court can vacate the unilateral notice without more ado; ii) in a clear case, the jurisdiction can be exercised on an interim application without a trial and a robust approach is appropriate; iii) if the claim has some substance, the Court approaches the matter in the same way as it would had an application been made for an injunction restraining the registered proprietor from dealing with the property in a way incompatible with the claim pending determination; if the notice is allowed to remain then an undertaking would be required to pay compensation should the claim fail.
The defendant’s case was held to be wholly lacking in substance and the unilateral notice was vacated (subject to requiring the claimant to undertake to pay a certain sum into Court).
Quay House Admirals Way Land Ltd v Rockwell Properties Ltd [2022] EWHC 545 (Ch) was a rather more complicated (and commercial case) in which the Court exercised its inherent jurisdiction to order removal of a restriction in favour of the defendant developer after the claimant landlord purported to terminate the relevant agreement between them. It is notable that the Deputy High Court Judge considered, on the facts, that the jurisdiction to alter the register under Schedule 4, paragraph 2 of the Act was simply not applicable/engaged.
It was contested that in respect of restrictions the Court had any inherent jurisdiction. However, after a detailed review of the earlier case law (and commentary) and the principle of inherent jurisdiction more generally (para’s 63 – 84), the Court concluded that it had the power to make the order sought. Effectively, the power could be invoked on either of two basis: i) applying the summary judgment test, if the beneficiary of the entry (in this case, a restriction) had a claim without any real substance, then the entry would be vacated; ii) conversely, if there was a good arguable claim to the entry, the Court should approach the matter as if the beneficiary of the entry had applied for an interim injunction protecting its claimed interest (requiring a cross-undertaking in damages and consideration of the possible adverse effect of such an injunction and whether uncompensatable prejudice would be suffered).
On the facts the Court (applying the American Cyanamid test) held that the restriction should be removed.
A Recent Development
Hathi v Arif [2025] 8 WLUK 533 was, to put it mildly, an unusual case. The defendant had charged his property in favour of a third-party lender. Possession proceedings brought by the lender were settled via a Tomlin Order (entered into by the Official Solicitor on the defendant’s behalf at a time when he lacked capacity). The Tomlin Order was breached and a possession order made in favour of the lender, who then sold the property to the claimants. Meanwhile, the defendant regained capacity and objected to the registration of the claimants as the new registered proprietor of the property. The matter was referred to the FTT, which, in due course, directed the claimants to bring proceedings in the High Court pursuant to s 110 of the Act. The claimants issued an application for an interim order requiring the Chief Registrar to register them as the proprietors pending trial.
HHJ Rawlings reviewed the authorities and held that the Court’s inherent jurisdiction extended to making an interim order to substitute one person for another as the registered proprietor of land, and that as the defendant did not have a case of any real substance no cross-undertaking in damages would be required. The writer appeared for the claimants.
Conclusions
Megarry & Wade (10th edn) at 6-076 make the point that it has never been determined whether the County Court has any similar jurisdiction, but the authors take the view that it cannot as it was created by statute. In those circumstances, some care must be taken as to where proceedings are issued if the type of relief illustrated above is sought.
The inherent jurisdiction of the High Court should be of some interest to property practitioners, as, it is hoped, the above will demonstrate. The decision in Hathi is illustrative of the Court’s willingness to exercise its power flexibility with respect to the registered title on an interim basis in the right circumstances.
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
